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SCA/11176/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11176 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MUKESHBHAI
RAMABHAI DAMOR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BK RAJ for
Petitioner(s) : 1,
MR KL PANDYA, AGP for Respondent(s) : 1,
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/10/2010
ORAL JUDGMENT
1. By
filing the present petition under Article 226 of the Constitution of
India, the petitioner has prayed to quash and set aside the order of
detention dated 11.6.2010, which was executed on 12.6.2010, passed by
respondent No.2 Police Commissioner, Ahmedabad City in exercise
of powers conferred under sub-section (2) of Section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 (for short PASA
Act ). The petitioner is branded as bootlegger .
2. Heard
Mr BK Raj, learned advocate for the petitioner and Mr KL Pandya,
learned AGP for the respondents. Affidavit in reply filed by
respondent No.2 Commissioner of Police, Ahmedabad City has been
taken into consideration.
3. The
petitioner came to be detained as bootlegger on his involvement
in one offence arising under the Bombay Prohibition Act.
4. It
has been submitted by the learned counsel for the petitioner that it
is a settled legal position that on registration of one offence, no
order of detention could have been passed, as petitioner detenu
cannot be branded as bootlegger . It is further submitted that
the activities of the petitioner cannot be said to be injurious to
the public health or public order. It is further submitted by the
learned counsel for the petitioner that there is gross delay in
passing the order of detention as well as there is gross delay in
executing the order of detention.
5. Per
contra, Mr KL Pandya, learned AGP representing the respondents
supported the detention order dated 11.6.2010 passed by respondent
No.2 Commissioner of Police, Ahmedabad City and submitted that
before passing the detention order, respondent No.2 Commissioner
of Police, Ahmedabad City took into consideration all the relevant
papers placed before him and therefore, the detention order is legal
and valid and no interference is warranted and hence, the petition
may be dismissed.
6. I
have gone through the grounds of detention and considered the
arguments advanced by the learned counsel for the petitioner as well
as the learned AGP.
7. The
Court is of the opinion that there is much substance in the arguments
advanced by learned counsel for the petitioner. It is seen from the
grounds that a general statement has been made by the detaining
authority that consumption of liquor is injurious to health. In fact,
a perusal of the order passed by the detaining authority shows that
the grounds which are mentioned in the order are in reference to the
situation of law and order and not public order .
Therefore, on this ground, the subjective satisfaction of the
detaining authority is vitiated on account of non-application of mind
and the impugned order, therefore, deserves to be quashed and set
aside.
8. Except
the general statement, there is no material on record which shows
that the petitioner detenu is carrying on illegal activities of
selling liquor or is engaged in such activity, which is harmful to
the health of the public. In the case of Ashokbhai Jivraj alias
Jivabhai Solanki V/s. Police Commissioner, Surat, reported
in 2001(1) GLH 393, having considered the decision of
the Hon’ble Apex Court in the case of Ram Manohar Lohia v/s. State
of Bihar, reported in AIR 1966 SC 740, this Court held
that the cases wherein the detention orders are passed on the basis
of the statements of such witnesses fall under the maintenance of
law and order and not public order .
9. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention, the detaining authority must come to a definite
finding that there is threat to the public order and it is very clear
that the present case would not fall within the category of threat to
a public order. In that view of the matter, when the order of
detention has been passed by the detaining authority without having
adequate grounds for passing the said order, cannot be sustained and
therefore, it deserves to be quashed and set aside.
10. In
the result, this petition is allowed. The impugned order of detention
dated 11.6.2010 passed by respondent No.2 Police Commissioner,
Ahmedabad City is hereby quashed and set aside. The detenu is ordered
to be set at liberty forthwith, if not required in any other case.
Rule is made absolute accordingly. Direct service is permitted.
(J.C.UPADHYAYA,
J.)
mrpandya
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